Lawyers' Poker_ 52 Lessons that Lawyers Can Learn from Card Players ( PDFDrive )

138 fact, the cards are strictly secondary, really little more than

m the tableaux against which the game is played. The more

important information concerns the players themselves. Are
they tight or loose? Can they be bluffed into folding or, bet-
ter yet, drawn deeply into a hopeless pot? Will they overplay
their hands, or are they too timid to go all in? Are they greedy,
gullible, patient, or slick? With that sort of information, you
can usually win even with bad hands and beat your oppo-
nents (in the long run) no matter what they hold—which
is why Yardley was fond of saying that he played his oppo-
nents, not the cards. Or, to paraphrase Shakespeare, the key
is not in our cards, but in ourselves.

You have to understand your opponents—indeed, you
have to be able to see through them—in order to win consis-
tently at either poker or law. In his book Total Poker, the Brit-
ish journalist David Spanier used a vignette from a film to
illustrate why sizing up your adversary is crucial to success.
As Spanier explained, “[T]he best film about poker, curiously
enough, isn’t about poker at all. It’s The Hustler (1961), which
is about pool playing.” Evaluating the opposition is a univer-
sal skill.

Based on a novel by Walter Tevis, The Hustler is the story
of Fast Eddie Felson (played by Paul Newman), a young
pool player on the make. Eddie is determined to establish
his reputation by beating the famed Minnesota Fats, but
first he needs to raise a stake by winning some money in a
small-town dive. As the film opens, we see Eddie and his pal
Charlie entering a slummy bar. The two men begin drinking
and playing pool, loudly pretending to be drunk. Eddie loses
game after game, attracting attention with his ostentatious
complaints, until he somehow manages an impossible three-

lawyers’ poker

cushion shot that ends when the ball runs the length of the 139
table and into the corner pocket.
m
“You couldn’t play that shot again in a million years,”
says Charlie.

“I couldn’t?” sneers Eddie. “Set ’em up again the way the
were before . . . bet ya twenty bucks.” Eddie tries the shot
again, but he misses badly. In fact, the cue ball flies off the
table, as the locals get a good laugh. “Set ’em up again,” insists
Eddie, but Charlie will have none of it. Stumbling a bit, Eddie
angrily slams his money down on the table, demanding to
play again. He seems to be challenging Charlie, but of course
he is looking around the bar for a mark.

Eddie notices something in the bartender’s eye and realizes
that he’s found his man. He takes out $100, and the barkeep
eagerly announces that he will take the bet if no one else will.

“Don’t bet any more money on the damn fool shot,”
warns Charlie, heading for the door. But Eddie is stubborn
and overconfident as only a drunk can be. No one can tell
him different; he’s going to make the shot. The bartender
doesn’t want to miss his opportunity, so he quickly pulls
$100 from the till and lays it on the rail.

With the balls set up and the money in sight, Eddie
raises his cue and drops the pretense. With one sinuous
motion, he slams home the shot and scoops up the money.
Then he races out the door with Charlie, to make their get-
away before the stunned barman realizes how thoroughly
he has been hustled.

It was nice work, observed Spanier. “Accurate too, because
it is the greed of the sucker that makes the hustler’s skill pay.
Without the victim’s desire to get rich quick, the hustler
couldn’t con him along.”

Digging for Information

140 In other words, Eddie’s fantastic shot was only inciden-

m tal. He had to get someone to bet against him if the con were

going to work. That required attracting attention and feign-
ing a shaky hand. But most of all, he had to identify a likely
mark who could be tempted to bet against him. Recognizing
the barman’s greed, therefore, was the true heart of the hus-
tle. Without that information, Eddie would have gone home
empty-handed no matter how many great shots he made.

The only difference in poker is that everyone knows
about the deception. Nonetheless, you still win the most
when you can get someone else to smell easy money. You’ve
got the winning hand, but no one can see it—maybe suited
face cards in the hole, giving you the nut flush—just as no
one in the bar knew that Eddie Felson could make the tricky
shot. Now you need someone to bet against you, mistak-
enly confident that he’s got you beaten. You demur a bit; he
raises big time on the turn. You just call, setting the hook.
He raises again on the river, and this time you go all in.
Voila! Just like Fast Eddie, you made someone else’s greed
work for you.

Now let’s revisit Abraham Lincoln’s great cross-examina-
tion, discussed at some length in the “Diamonds” section.
Could it be that Honest Abe and Fast Eddie actually have
something in common? Well, they do. Both men knew how
to take advantage of an overreaching adversary.

Recall that the key prosecution witness testified that Lin-
coln’s client bit off the victim’s nose. But the witness had
been birdwatching and was pretty obviously looking the
other way during the fight.

“So how can you say that my client bit off his nose?”
asked Lincoln, rather bumblingly (though not drunk, like
Felson).

lawyers’ poker

“Because I saw him spit it out,” retorted the too-eager 141
witness.
m
But Lincoln was not bumbling at all. He was taking the
witness’s measure. Finding him greedy and willing to exag-
gerate, Lincoln moved in for the kill.

“How could you see so clearly at night?” he challenged.
“By the light of the full moon,” said the witness. There it
was, the equivalent of $100 on the rail, as the witness took
the bait.
Just as Fast Eddie slammed home the winning shot, Lin-
coln produced the Farmers’ Almanac, proving that it had been
a moonless night. Greed observed. Bet won. Case closed.

lesson 3: Tells

Lawyers, judges, and jurors all think that they can read body
language as well as Abraham Lincoln, correctly separating
the reliable witnesses from the lying scoundrels. There is a
near-absolute faith, both professional and popular, that one
need only “look the witness in the eye” in order to distinguish
honesty from mendacity. This notion is even enshrined in the
law of the appellate process, where it is a truism that a trial
court’s determination of credibility lies beyond all review.

Alas, most research shows that people have only random
success at recognizing falsehoods on the basis of demeanor.
Studies have consistently found an extremely high error rate
in recognizing deception. Observers are wrong between 30%
and 60% of the time, and no profession does better than any
other. Judges, police officers, social workers, and psychiatrists
all tend to score in the same overall range as the general pub-
lic. One set of tests, for example, was given to police officers,

Digging for Information

142 customs examiners, judges, trial lawyers, psychotherapists,

m and agents of the Federal Bureau of Investigation, Central

Intelligence Agency, Drug Enforcement Administration, and
Bureau of Alcohol, Tobacco, and Firearms. On average, the
subjects, all of whom are expected to be able to weed out
deceit in their professional lives, were able to distinguish
lying at a rate of 50%—exactly what they would have achieved
through random guessing.

Nonetheless, people continue to express great confidence
that they can identify verbal and nonverbal conduct that will
reveal another’s true intentions.

As far as I know, there has been no study of truth detec-
tion that specifically included poker players in its sample.
Such a survey would be interesting indeed, since poker play-
ers are adamant about their proficiency in “reading hands,”
meaning that they can figure out another player’s cards and
betting strategy on the basis of unintentional tells. As Sklan-
sky confidently explains, “The ability to read hands is the
most important weapon a poker player can have.” Mike Caro,
who has written an entire book on tells, puts it this way:

Once you’ve mastered the basic elements of a winning
poker formula, psychology becomes the key ingredi-
ent separating break-even players from world-class
superstars. The most profitable kind of poker psychol-
ogy is the ability to read your opponents. Look closely
and you’ll see opponents giving away the strength of
their hands just by their mannerisms. Any mannerism
that helps you determine the secrets of an opponent’s
hand is called a tell.

And they are right. There is no doubt that winning poker
players can, and do, read their opponents. They can deduce

lawyers’ poker

what cards you are holding, figure out whether you are bluff- 143
ing, and determine the exact move that will cause you to fold
(or raise). The stories are legion of poker masters who used m
three levels of logic and reverse logic to pull off an unlikely
bluff or to call, correctly, when the odds seemed disastrous.
According to journalist Malcolm Gladwell, certain individu-
als do seem to be gifted at reading facial expressions, scoring
off the charts on various tests. “Most of us aren’t very good
at spotting it,” says Gladwell. “But a handful of people are
virtuosos.”

What is their secret? Is there really a psychic gift, or per-
haps finely honed intuition, that allows poker wizards to see
through bluffs and detect deception, exercising a talent that
eludes ordinary judges and jurors? And if there is such a skill,
how might a trial lawyer acquire it?

For championship-level card players, this skill comes with
years of experience, reflection, and insight—not to mention
the talent necessary to take advantage of experience, reflec-
tion, and insight. Additionally, there are four aspects to the
game of poker that allow their abilities to develop. Unfortu-
nately for lawyers, however, only one of these elements has
anything approaching a corresponding component in law
practice.

The first poker-specific factor is certainty. At the card
table, everyone is behaving deceptively, or at least trying to,
all of the time. Thus, you never have to determine whether
someone is attempting to mislead you, but only how and in
what manner. Even the most cynical lawyer, however, would
have to agree that most witnesses tell the truth most of the
time. Different factual accounts are usually the result of
failed memories, poor observations, or honest differences of
opinion—none of which exist in poker. Thus, distinguishing

Digging for Information

144 truth from treachery is immeasurably more difficult in law

m practice, because you are regularly confronted with both.

In poker, there is only treachery, which makes matters
considerably easier. As Anthony Holden says, “Poker is the
ultimate monument to the anti-Musketeer code: Every Man
For Himself (and be sure, while you’re at it, to kick the other
guy when he’s down).”

The second factor is simplicity. Although there are more
than 2.5 million conceivable hands in poker, only three or
four will be even remotely possible in any given play. More-
over, the actual question will usually boil down to a simple
yes or no. Does your opponent have the cards, or is she bluff-
ing? Thus, the choices are relatively narrow, making them
that much easier to read. At trial, in contrast, the scope of
possible deception is nearly limitless and hardly ever black
and white. Witnesses may testify in various shades of gray
about timing, intention, emotion, location, sequence, and
other matters of interpretation. The testimony may be a
complex jumble of truth, wishful thinking, artful construc-
tion, and outright prevarication. Alas, there is nothing binary
about it.

Moreover, poker allows the nearly instant validation of
one’s suspicions. If you think someone is bluffing, based on
a tell or some other factor, call her bet and find out. She
will have to show her cards, so you can determine immedi-
ately whether your suspicion was accurate. In law, there is
no reliably similar method of external verification (if there
were, we would use it instead of holding a trial). The fact
finder will either trust or discount the witness’s testimony
in what becomes a self-fulfilling analysis. Witnesses are
untrustworthy because no one believes them. Yes, witnesses
are sometimes caught in lies, or are successfully impeached,

lawyers’ poker

but that is usually because of inherent inconsistencies in 145
their testimony, not because a lawyer or judge has identified
a valid tell. m

Finally, we come to a factor that can be useful to law-
yers, although not as might be expected. For all of the talk
of reading hands and watching tells, it turns out that the
single most important determinant is familiarity with your
opponent’s playing style. According to Caro:

Through the analysis of tells we are trying to under-
stand how players behave and what this reveals about
their motivation. One of the first steps in discovering
tells is for a player to develop a sense of the baseline
behavioral repertoire of one’s opponents.

The baseline, he continues, needs to be observed over time
so that meaning can be attached to repeated anomalies:

Again, by cataloging the baseline behavioral reper-
toire of individual players, one can begin to recognize
“deviations” from normal pattern[s] and develop a
second sense, a “feel” for something not being entirely
correct. In any case a novice poker player, or an expe-
rienced poker player who enters a new game with
unknown opponents, should use his calls as a kind
of behavioral experiment. You have paid not only to
see a hand, but you have paid to see the quality of the
hand and how it was played.

Bellin explains that he has compiled his own player-
specific “book of tells” over a period of 20 years, cataloging
the tics and giveaways of everyone with whom he has ever
played. “Obviously,” he says, “the more familiar you are with
a player, the longer you play against them, the easier they

Digging for Information

146 are to read. Over time, you make notes about their play, and

m eventually you will be able to predict their actions.”

Since poker games move quickly, with as many as 35
hands per hour in Texas Hold’em, there is ample opportu-
nity to observe one’s opponents. Familiarity with playing
styles can build rapidly, especially in regular games with the
same players every week.

Lawyers seldom have this luxury with witnesses, most of
whom are not repeat players. Only in fairly unusual circum-
stances will an attorney have the opportunity to establish
a witness’s baseline behavioral repertoire. Thus, the inter-
pretation of a witness’s mannerisms and demeanor inevi-
tably remain at the level of supposition, if not outright
guesswork.

There is a lesson for lawyers in the art of reading poker
tells, but it is an ironic one. Lacking the advantages of cer-
tainty, simplicity, and validation, lawyers should rely on
tells primarily in situations of significant familiarity—rare as
those might be.

lesson 4: Get What You Need

Writing in 1977, David Spanier called The Hustler the best
film ever made about poker. Two decades later, he might have
revised his opinion after viewing Rounders (1998), which pro-
vides a compelling and realistic, if highly dramatized, view
of the New York City poker scene. Mike McDermott (played
by Matt Damon) is a winsome young law student with a tal-
ent for poker. Although he tries to quit playing—keeping
his girlfriend happy and forging a new career as a lawyer—
he keeps being drawn back into the underground world of

lawyers’ poker

basement card rooms, professional gamblers, and thuggish 147
enforcers. The chief of the thugs, and Mike’s nemesis, is the
Russian émigré Teddy KGB (played by John Malkovich)—a m
poker genius, ruthless mobster, and operator of the tough-
est card room in Manhattan. KGB has already busted Mike
once at poker, relieving him of his entire bankroll, and he
also holds $15,000 of Mike’s improvidently acquired, soon-
to-be-overdue debt. The climax of the film comes when Mike
and KGB face off in a head-to-head, all-night Texas Hold’em
game. The stakes are no limit, but they are actually even
higher than that for Mike, who will be beaten to a pulp if he
cannot win enough to pay off his debt by morning.

For a while, the game goes back and forth. At one point,
Mike has enough winnings to erase his debt, but he cannot
bring himself to walk away from the table without busting
KGB. That appears to be a mistake, as KGB rallies and wins
back most of Mike’s stack. “Don’t worry,” the Russian whis-
pers, “soon it will all be over.” But then the turning point
occurs, on a seemingly improbable hand.

The flop is an A 3 5 rainbow (three different suits). At
first, we do not see Mike’s hole cards, but we know they are
good because he starts to push most of his stack into the
middle of the table. But then he spots a tell. Something
about KGB’s mannerism cautions Mike about betting, so he
moves his chips back and simply checks. KGB smiles and
moves all in. We haven’t seen the pre-flop betting, but at this
point it is clear that Mike is going to lose everything if he
keeps allowing KGB to steal his blinds. So Mike has to decide
whether KGB is bluffing, and it isn’t an easy decision. Is this
hand worth risking everything?

“I’m laying this down, Teddy,” says Mike, flipping over
his hand to reveal an ace and a five. “It’s the top two pair,”

Digging for Information

148 he says, “a monster hand, but I’m laying it down. ’Cause

m you’ve got two-four, and I’m not going to draw against a

made hand.”
Teddy goes wild. He had flopped a straight, which should

have gotten a lot of action against Mike’s two pair. But Mike
read him like a book and avoided ruin by folding a great
hand. Amarillo Slim would have been proud.

But there is more to the story than that. First, Mike picked
up KGB’s tell, a crucial piece of information that alerted him
to the lurking disaster. Then he had the sense to put KGB
on the nut straight, realizing that he couldn’t bluff and was
unlikely to draw out (only four cards in the deck—another
ace or five—could have helped him). Most important, how-
ever, Mike decided to show his two pair, letting KGB know
that he had the nerve to fold a great hand. “Why the fuck
did you lay that down?” fumes KGB, “it should have paid me
off.” Then he realizes what happened, and he starts throwing
things against the wall.

Mike’s play was perfect. He got the knowledge he needed
and then stopped, realizing it was best to back away for the
moment. By showing his monster hand, however, he also
set up KGB for future hands. Folding the top two pair was
supertight play. Perhaps that meant that Mike would never
bluff—a man who would fold aces and fives certainly was not
going to bet heavily on rags. Or did it mean the opposite,
that Mike was planning to bluff, using the folded monster
as a come-on? Mike also established that he could read KGB
perfectly, which would make the Russian hesitant to bet
heavily, especially on drawing hands, later in the game.

But why did Mike let KGB know that he spotted the tell?
Why not keep it a secret to be exploited again and again, for
weeks or even months? Mike himself recognized the prob-

lawyers’ poker

lem and explained his strategy, “The rule is this: You spot 149
a man’s tell, you don’t say a fuckin’ word. I finally spotted
KGB’s, and usually I’d’ve let him go on until he was dead m
broke. But I don’t have that kind of time; I’ve only got until
morning.” Besides, “not even Teddy KGB’s immune to get-
ting a little rattled.”

In other words, Mike wasn’t throwing in his hand at all.
Realizing that there was “no tomorrow,” he made a calculated
move to put KGB on tilt, thereby throwing off his game for
the rest of the night. Soon enough, we see KGB muttering,
“Hanging around, hanging around. The kid’s got alligator
blood. I can’t get the read of him.” Mike had the advantage
and, this being a Matt Damon film, it worked like a charm.

F. Lee Bailey made a similar play in the O. J. Simpson
trial, though with a slightly different endgame. Detective
Mark Fuhrman had played a crucial role in the investiga-
tion that led to Simpson’s arrest, including discovering the
bloody glove at the Rockingham estate. Fuhrman’s testi-
mony was necessary to complete the chain of custody tying
Simpson to the prosecution’s strongest physical proof. The
defense, however, contended that Fuhrman had carried the
glove to Rockingham, planting it there to implicate Simp-
son. That argument promised to be a tough sell, not least
because Fuhrman at first seemed nearly unimpeachable. In
Johnnie Cochran’s words, he fit everyone’s image of an “ideal
cop” from central casting.

Well, not quite everyone. More specifically, not F. Lee Bai-
ley. As Cochran put it, Bailey’s “trial lawyer’s intuition” led
him to see a very different side of Fuhrman. “There’s some-
thing very wrong with this guy’s testimony,” said Bailey after
watching Fuhrman during the preliminary hearing. “I’m tell-
ing you there’s a flaw in there. And it’s a bad one.”

Digging for Information

150 Bailey had picked up a tell, and he had a plan for using it

m on cross-examination.

Again, Cochran described the situation: “Playing on
Fuhrman’s arrogance and obvious disdain, Bailey danced
him around until he stated two things without qualification:
He had ‘never’ spoken the word ‘nigger’ in the past ten years,
and he had ‘never’ planted evidence.”

“Do you use the word ‘nigger’ in describing people?” Bai-
ley asked.

“No, sir,” said Fuhrman politely.
“Have you used that word in the past ten years?”
“Not that I recall.”
“Are you therefore saying you have not used that word in
the past ten years, Detective Fuhrman?”
“Yes, that is what I’m saying,” Fuhrman replied, with
somewhat less certainty. The jurors may not have picked up
the slight edge in Fuhrman’s voice, but Cochran and Bailey
heard a small note of caution.
“And you say under oath that you have not addressed
any black person as a ‘nigger’ or spoken about blacks as
‘niggers’ in the past ten years, Detective Fuhrman?” Bailey
demanded.
“That’s what I’m saying sir.”
“So that anyone who comes to this court and quotes you
as using that word in dealing with African Americans would
be a liar, would they not, Detective Fuhrman?”
“Yes, they would.”
“All of them, correct?” Bailey insisted.
“All of them,” Fuhrman replied.
And that, as Cochran would later write, was the “sound
of a very large door opening.” Almost no one else realized
it at the time. Trial commentators were almost unanimous

lawyers’ poker

in panning Bailey’s cross-examination for failing to “shake” 151
the witness. Fuhrman had calmly denied all accusations,
and it would be months before the defense team discov- m
ered his taped conversations with screenwriter Laura Hart
McKinney.

It seemed as though Bailey had laid down his hand, giv-
ing up on a promising line of questioning without scoring
many points. Fuhrman himself, of course, knew differently.
He knew that he had been tape recorded repeatedly using the
racial slur, and he had to worry about whether Simpson’s
lawyers had the tapes. Perhaps even more significantly, Bai-
ley was not the only one who correctly read the tells. “I could
tell by the way he twisted around in his seat and clenched
his hands in his lap, that he was lying,” the jury foreperson
would say after the trial. Fuhrman’s repeated lies about the
n-word (he was later convicted of perjury, following the testi-
mony of Laura McKinney) infected the rest of his testimony,
fatally undermining his insistence that he had never planted
evidence. F. Lee Bailey’s seeming lay down, just like Matt
Damon’s, did its work and then some.

lesson 5: True Lies

The most reliable tells are the involuntary ones—mannerisms,
habits, nods, and speech patterns—over which the players
themselves have no control (and usually do not even know
about). According to Andy Bellin, these quirks are the result
of a conflict between childhood morality (“stand up straight
and tell the truth”) and poker’s demand for constant decep-
tion. Poker is one of the rare social situations in which lying,
or at least misrepresentation, is acceptable or even encour-

Digging for Information

152 aged. Consequently, most casual players experience an emo-

m tional reaction to deceit, typically something akin to a guilty

thrill, that can produce anything from a smile to a blink to a
heavily furrowed brow. Superior players have learned to sup-
press these reactions—the fabled “poker face”—as well as to
read them in others. They also frequently hide their expres-
sions behind broad-brimmed hats and sunglasses, tactics
that are not available in courtrooms.

It is easy enough to tell when someone is reacting to
his own cards (and yours). Shaking hands, furtive glances,
anguished sighs, clenched fists, and shoulder shrugs are all
impossible to miss at the card table. But what do they mean?
How should they be interpreted? Does a sweaty brow mean
that your opponent hit the nut flush and hopes that you will
call? Or does it mean that he missed his hand on the river
and hopes that you will fold? He would be nervous, perhaps
equally nervous, in either case, so there is no absolute for-
mula for interpreting an adversary’s body language.

Nonetheless, Mike Caro believes that certain tells are rel-
atively consistent from player to player, conveying the same
information about their hands. For example, Caro cautions
that a “suddenly shaking hand” almost always indicates that
your opponent has great cards and is not bluffing. This is
somewhat counterintuitive—you would probably think that
a trembling hand is the sign of a nervous bluffer—and there-
fore somewhat contrary to Bellin’s observation about moral-
ity and deceit.

But Caro makes a good case. Bluffers, he says, “bolster
themselves and often become rigid. They don’t allow them-
selves to shake, because they’re afraid the shaking would
make you suspicious and prompt you to call.” Conversely,
a shaking hand indicates the release of tension “that comes

lawyers’ poker

automatically when the suspense ends.” A player who has 153
made a big hand—often a truly monumental hand—expects
to win, and his suddenly shaking hand “signals the happy m
ending to drama.” Conversely, a player who is holding his
breath is probably bluffing, according to Caro. Players back-
ing weak hands are afraid of calling attention to themselves,
so they attempt to become less noticeable by freezing, and
sometimes they even stop breathing. Consequently, you
should be inclined to fold against a hand trembler and call
or raise a breath holder.

This seems like sound advice, and Caro himself has cer-
tainly been successful as a player, teacher, and maven. Most
important, he never claims to be able to interpret tells with
100% accuracy. “A tell is just another factor to consider,”
he says, “and it needs to be weighed along with all other
factors.” What sort of player are you facing? How has she
behaved on past hands? Who else is at the table? What are
the pot odds? And how large are the stakes? Ultimately, you
will have to fold, call, or raise on every hand, and that will
give you an opportunity to validate (or discount) any tells
you have tentatively identified. If the bet is small enough, go
ahead and call the player holding her breath (or better yet,
wait for someone else to call her), and you will quickly find
out whether she is bluffing.

Granting that Mike Caro is an astute observer and shrewd
commentator, lawyers still have to wonder what it means
when a witness’s hand starts shaking. Is it a sign of decep-
tion or just an emotional release? Is he hiding something,
or is he merely nervous about speaking in public? Alas, it is
impossible to generalize. Trembling hands (or baited breath,
for that matter) must mean something, but it is likely to be
different for every witness.

Digging for Information

154 Even if there is no universal key to a witness’s body lan-

m guage, there are a number of commonly held perceptions

(or perhaps misperceptions) about demeanor and truthful-
ness. Shaking hands and shifting posture, for example, will
almost always be interpreted as signs of deceit. Jurors, and
judges too, regularly report that they disbelieved witnesses
who appeared nervous or shifty, even though, per Caro, we
know that the exact opposite might be the case. An earnest
witness may be overly concerned about her appearance—
more so than a practiced liar—and therefore appear jittery
or uptight.

There are other verbal and nonverbal cues that are fre-
quently assumed to indicate deceit, although none of them
ever have been actually correlated with truth or falsity. These
include speech patterns such as unnaturally short or clipped
answers, hesitation and stammering, verbal tics (“uhh, well,
let’s see, umm”), garbled or fragmentary language, voice
tremors, and constant self-reference (“to be perfectly hon-
est”). A witness’s attitude can also make a difference. Anger,
self-righteousness, or aggressiveness—even when justified by
the circumstances—will often be construed as dishonesty. So
will a completely flat affect or lack of emotion, so a perfect
poker face is actually a disadvantage on the witness stand.
When it comes to pure body language, shaking hands and
shifting posture can be deadly to a witness. The other most
frequently perceived indicators of deceit include rapid blink-
ing, lack of eye contact, grinning, folded arms, and overactive
hand gestures.

In poker, you always want your opponents to doubt your
motives. If they misinterpret your tells, so much the better.
Trial work, of course, is just the opposite, especially when it
comes to witnesses. They have to tell the truth and, nearly as

lawyers’ poker

important, they have to look like they are telling the truth. 155
Recognizing the power of tells, and the pitfalls, should cause
lawyers to redouble their efforts at witness preparation. m

lesson 6: That’s Acting

In addition to involuntary (or subconscious) tells, there are
also many “acted” tells—intentional behaviors that are meant
to be deceptive, but which can actually be quite transparent
to the trained eye. In most cases, they are derivative of the
basic poker strategy to show strength when weak and weak-
ness when strong. Thus, an opponent who is conspicuously
attempting to appear weak (“oh, please don’t call my bet”)
might be holding the nuts, and a blustering player (“do your-
self a favor and fold”) may well be bluffing. These are sto-
ries nearly as old as literature itself. Think of Atlas and the
golden apples, or Brer Rabbit and the briar patch, or Tom
Sawyer and the whitewashed fence.

Of course, it is not always that simple. Only the most
naive player would attempt to fool you so blatantly. So a
boast like “do yourself a favor and fold” might turn out to
be an example of second-level strategy: a strong player faking
a bluff, hoping that you will misinterpret his hand and call
rather than fold. An intricate move, indeed.

Consequently, the first challenge is to determine when
your opponent is acting. Mike Caro offers this advice: “It’s
probably an act if the player has reason to believe you might
be observing a specific mannerism and it is of obvious value
to him that your conclusion is wrong.” Importantly, as Caro
points out, both conditions are necessary. Your opponent
must believe you are watching, and your decision must mat-

Digging for Information

156 ter to him. Thus, a novice who folds his cards out of turn is

m probably not acting. He may know that you are watching,

but your decision does not matter because he has no inten-
tion of staying in the hand. On the other hand, a seasoned
pro who starts to fold out of turn is likely trying to get you to
stay in the pot—by indicating that there will be less competi-
tion—but in reality is planning to raise.

Even when you are certain that your opponent is acting,
you still have to decide whether you are seeing first- or sec-
ond-level deception. Is it the old weak-when-strong ploy, or
is it a bit of more sophisticated reverse psychology? The trick,
as Caro puts it, is the Great Law of Tells: Decide what your
opponents want you to do, and then disappoint them. This
is not as hard as it might seem. As Steven Seagal has proven
time and again, bad acting usually looks like, well, bad act-
ing—and most card players are not even that good.

Fortunately, it turns out that there are some acted tells
that can be usefully identified in most situations. For exam-
ple, overt disinterest is almost always the sign of a strong
hand. A player staring away from the pot is trying to avoid
drawing attention to herself. She wants you to think that she
is not following the action, that she has no particular plan,
and of course, that she is not trying to set you up for a big
score. By the same token, a player who shrugs or sighs, or
expresses reluctance when betting, is probably trying to dis-
guise a powerful hand. As Caro puts it, “Why would players
go out of their way to convey sadness and make you suspi-
cious if they didn’t want you to call?”

On the other hand, a player who attempts to stare you
down, or who aggressively pitches his chips into the pot, is
trying to appear confident, which probably means a bluff.
True, an outstanding player might rudely “splash” the pot

lawyers’ poker

as a feigned bluff, trying to keep you in the game because 157
he has a monster hand. But most players, even good ones,
are too insecure to try a move like that, afraid that they will m
end up scaring you away. It is safer to bet quietly, sliding the
chips into the pot as though it is no big deal. Nice and easy,
let’s keep playing.

Most lawyers are mediocre actors, at best. As with card
players, then, feigned indifference is a reliable sign of active
interest. At a deposition, for example, everyone knows that a
preface such as “by the way” or “for the sake of curiosity” can
only mean that the lawyer is zeroing in on something truly
important. An expression of surprise may sometimes be sin-
cere, especially if it is an unforced exclamation (“What!”),
but otherwise it is usually an attempt to get a well-prepared
witness to expand on a damaging answer.

The biggest tip-offs, of course, come in settlement discus-
sions. The more a lawyer professes eagerness to bring a case
to trial, the harder he is trying to shake out an early settle-
ment offer. And you will need an entire salt shaker when you
hear a lawyer say something like, “My client will never set-
tle, but I can do my best to convince him.” Sure, counselor,
whatever you say. Just don’t splash the pot.

lesson 7: Calling Bias

Almost no one sits down at the card table planning to throw
away 50 or 100 hands in a row. Even Herbert Yardley’s aco-
lytes, the tightest of all players, want to see some action and
win some pots. While they might be disciplined enough to
refrain from raising with weak hands, many will be hoping to
spot bluffers, thinking they can call a few bets to keep others

Digging for Information

158 from stealing the pot. In other words, they want to be able to

m call, no matter how bad their cards. More significantly, they

will be looking for reasons to call, real or imaginary. Mike
Caro refers to this as the “calling reflex,” explaining that
poor-to-mediocre players are generally biased against fold-
ing and in favor of calling bets, even if they have to invent
reasons for doing so. The best players are aware of the reflex
and compensate for it, but less-capable opponents cannot
help themselves, if you know how to take advantage of their
weaknesses.

According to Caro, you are more likely to be called when
you are animated, say, shifting in your chair or playing with
your coffee mug. Some of your opponents will be inclined to
construe virtually any movement as a tell, and because they
are disposed to call in the first place, they will assume that
the tell indicates a bluff. As Caro explains, “They’re a little
bit like snakes, predisposed to strike at the slightest move.
Except they’re poker opponents, predisposed to call for the
slightest reason.”

This insight can give you a significant advantage when
you are holding a strong hand and want to keep other play-
ers in the pot. When you sense that someone is about to
fold, do something. Anything. Swallow hard, knock over
some chips, shuffle your hole cards, stretch your arms.
Someone otherwise reluctant to fold just might conclude
that you’ve given away a bluff and decide not to throw away
his hand just yet. Even if it doesn’t work, well, you haven’t
lost anything, because your opponent was going to fold in
the first place.

In any event, it is important to realize that the calling bias
causes many players to use tells incorrectly. They conjure up

lawyers’ poker

imaginary tells that prompt them to call, while ignoring the 159
actual tells that should have prompted them to fold.
m
There are witnesses who react in essentially the same
way, especially when they are highly invested in the outcome
of the litigation. As with card players, almost no one walks
into the deposition room, much less the courtroom, plan-
ning to keep quiet about the justice of her cause. Witnesses
want to tell the story. They want to explain and justify them-
selves. They want to convince everyone in sight—including
opposing counsel—that they are firmly in the right. Let’s call
this the “answering bias.” It can provide you with a power-
ful tool.

Most witnesses, to be sure, have been cautioned to avoid
loose talk, just as most poker players are well aware of the
advantages of tight play. But often they cannot help them-
selves. They will be looking for reasons—inventing rea-
sons—to give in to their reflexes and start talking. It would
be unfair to call them snakes, since they mostly want to tell
their versions of the truth, but they will pretty much react to
anything that seems like a moving target.

Did any witness ever suffer a greater talking bias, to
worse effect, than President William Jefferson Clinton? A
Yale-educated lawyer, Rhodes scholar, former constitutional
law professor, and Arkansas attorney general—not to men-
tion consummate politician and debater—he understood
the litigation process far better than most other witnesses.
In the crucible of cross-examination, however, when brevity
could have been the soul of his defense, he simply could not
restrain himself.

Clinton’s moment of truth came on August 17, 1998,
when he appeared for questioning before a grand jury empan-

Digging for Information

160 eled by Special Counsel Kenneth Starr. His earlier deposition

m testimony in the Paula Jones case had just been a warm-up,

as he had relatively little difficulty deflecting the inartful
questions of Jones’s inept lawyers. But now he was facing
experienced prosecutors, armed with the power of indict-
ment, who knew how to exploit every opening and seize the
slightest lead.

The president’s lawyers had obviously counseled him
that short answers were essential, and at first it seemed that
he understood. Within the first few minutes of the interroga-
tion, he read a prepared statement explaining that he would
limit most of his answers “because of privacy considerations
affecting my family . . . and in an effort to preserve the dig-
nity of the office I hold.” The prosecutor appeared to assent,
but it was not long before Clinton was disastrously (from his
perspective) expanding on his responses.

Even when questions often called for simple “yes” or
“no” answers, Clinton would elaborate at great length, often
adding details that would come back to haunt him. At one
point—perhaps sincerely, perhaps as a ploy—the prosecu-
tor attempted to point out that Clinton’s already-extensive
answer was quite sufficient.

“With all respect, Mister . . . ,” he said.
“Now let me finish,” Clinton interrupted. “I mean, you
brought this up.”
From that point onward, the prosecutors were content to
allow Clinton to continue his stream-of-conscious narrative.
In fact, they often encouraged him. It was not long before
Clinton committed his most memorable faux pas.
The prosecutor was pursuing a line of questioning about
events in the Jones case. During the president’s deposition,
Clinton’s lawyer had asserted that “there is absolutely no sex

lawyers’ poker

[with Monica Lewinsky] of any kind in any manner, shape or 161
form with President Clinton.”
m
“That statement is a completely false statement,” asked
the prosecutor. “Is that correct?”

“It depends on what the meaning of the word ‘is’ is,” the
president famously replied. “If ‘is’ means is and never has
been . . . that is one thing. If it means there is none, that was
a completely true statement.”

The tortured equivocation was quite unnecessary. Clin-
ton could just as easily have answered “yes” or “no,” neither
of which would have damaged him as much as the slippery
explanation.

Clinton’s extensive evasions before the grand jury became
the basis for one of the articles of impeachment voted by the
House of Representatives. And while he was not convicted
before the Senate on any of the four counts, Clinton’s second
term was severely compromised by the contentious proceed-
ing (not to mention Al Gore’s chances in the 2000 election).

The Clinton administration was a time of unparalleled
peace and prosperity, for which Clinton himself may justly
claim great credit. Nonetheless, his detractors will always be
able to insist that his legacy is best defined by the epony-
mous adjective “Clintonian,” thanks to his eager haggling
over the definition of the word is.

lesson 8: Paying Attention

The only way to read your opponents is by paying close atten-
tion to them at every opportunity. Do not tune out or leave
the table when you have folded a hand. Instead, keep an eye
on the active players and try to pick up their general habits

Digging for Information

162 and characteristics. Watch their moves and interactions, how

m they behave when bluffing or betting for value, how carefully

they select their hands, whether they can be intimidated,
who plays a tight game, and who is likely to steam.

When you are in the game, it is even more important to
watch your opponents, trying to put each one on a particular
hand. Their bets, especially their opening bets, will tell part
of the story. A large pre-flop raise, for example, usually rep-
resents either a high pair or high suited connectors. But of
course, you will have to be alert for specific tells that indicate
bluffing or semi-bluffing. This is especially true on the flop,
when everyone will be watching the cards to see whether they
have improved their hands.

Everyone but you, that is.
There is no reason to look at the cards as they fall on
the table. They are not going anywhere, and staring at them
won’t do you any good. Instead, you should be watching
your opponents as they watch the flop. You will never get
a better read on their reactions. In the half-moment before
they adjust their responses, you may be able to tell whether
the flop helps or disappoints them, as eyes widen, breaths
quicken, brows furrow, muscles relax, or teeth clench.
Mike Caro has even identified a couple of common tells
that are unique to the flop. Players who immediately look
at their chips are telling you (involuntarily) that they liked
the flop and are planning to bet. Often, they will catch
themselves and look quickly away, which makes the tell
even more reliable. Players who initially stare at the cards,
however, probably got no help but are looking more closely
just to make sure. Continued staring and smiling, however,
indicates bluffing, as the grinner wants you to think that he
made a big hand.

lawyers’ poker

But whatever the signals, the key is to be on the alert for 163
them. And that means watching the people instead of the
cards. m

Lawyers often have the same problem during witness
examinations. They tend to keep their eyes on their notes
or outlines, rather than on their witnesses. While it helps to
think carefully about the next question, it helps even more
to listen closely to the witness’s answers, which may pro-
vide a crucial insight or an opening for a devastating fol-
low-up.

One such missed opportunity occurred in the trial of Nic-
ola Sacco and Bartolomeo Vanzetti in 1921. The two Italian
anarchists were charged with murder following the armed
robbery of a factory payroll truck in South Braintree, Mas-
sachusetts. The evidence against them was slim, and many
believed that they were being persecuted for their immigrant
status and radical beliefs. Nonetheless, they were convicted
and sentenced to death, largely on the evidence of a police
ballistics expert who tied Sacco to the murder weapon.

The prosecution witness, William Proctor, testified at
length on direct examination about bullet identification.
Specifically, he compared a bullet taken from the body of
the dead security guard to a Colt pistol that was seized from
Sacco when he was arrested. Then came the hammer:

q : Have you an opinion as to whether bullet three
was fired from the Colt Automatic which is in
evidence?

a: I have.
q : And what is your opinion?
a: My opinion is that it is consistent with being

fired by that pistol.

Digging for Information

164 “That pistol,” of course, was Sacco’s, and the testimony

m seemed to seal his fate. Defense counsel Jeremiah McAnar-

ney was capable and extremely well prepared. He launched
into a stinging cross-examination of Proctor, questioning
the witness’s experience and challenging his judgment on
the manufacture of guns, the location and meaning of the
“lands and grooves” on the various bullets, and the possi-
ble existence of a different murder weapon. Whenever Proc-
tor strayed or attempted to explain an answer, McAnarney
brought him quickly back to heel. The defense lawyer had a
clear agenda for the cross-examination, and he intended to
stick to it.

Perhaps because he was so well prepared, McAnarney
did not catch the ambiguity in Proctor’s direct examination,
testifying only that the murder bullet was “consistent” with
being fired from Sacco’s pistol. In other words, he could
not really say whether it came from Sacco’s revolver or from
another Colt automatic of like caliber.

In any event, the crucial discrepancy was not raised on
cross-examination nor mentioned during defense counsel’s
lengthy final argument. The case went to the jury, which
deliberated for one day. The defendants were convicted and
condemned to die.

Following the convictions, however, defense lawyers
scoured the record for error and discovered Proctor’s hedged
testimony. Using the discrepancy in support of a motion for
a new trial, they called Proctor back to the witness stand. He
admitted that he used the indeterminate phrase “consistent
with” by prearrangement with the prosecution, so that the
jury might conclude that Sacco’s gun had been proven to be
the murder weapon.

lawyers’ poker

These new facts might have raised a reasonable doubt 165
among the jurors, especially if the cross-examination of Proc-
tor had compelled him to recant his direct testimony. But the m
hostile trial judge was unmoved. He denied the motion for
a new trial, and his ruling was upheld by the higher courts.
Many thoughtful Americans, including future Supreme
Court justice Felix Frankfurter, believed that the defendants
were not guilty. Despite massive protests and widespread
public support, however, Sacco and Vanzetti were electro-
cuted on August 23, 1927.

lesson 9: Reading Value

In the Sacco and Vanzetti case, Proctor’s ballistics testimony
was a semi-bluff. He did not actually have all the cards, but
he represented a made hand and got away with it when McA-
narney failed to fully cross-examine him. It is easy to criti-
cize the defense lawyer after the fact, especially if he simply
missed the ambiguity in the witness’s testimony. But there is
another possibility as well.

Perhaps McAnarney realized that Proctor was hedging
his testimony and consciously chose not to pursue the point.
After all, it could have been a setup. Police experts are tricky
witnesses to cross-examine (and always have been). They are
usually quite ready to frustrate defense lawyers, especially
when they venture into unfamiliar territory. At the very least,
McAnarney would have had to worry about challenging
Proctor, wondering whether the witness was prepared with a
pat explanation of why “consistent” really meant “guilty.” It
would have been risky to ask the witness to explain, so per-

Digging for Information

166 haps defense counsel simply determined that discretion was

m the better part of valor.

In other words, McAnarney had to decide—on the spot—
whether Proctor was bluffing or betting for value, which
would in turn determine whether defense counsel should
raise or fold. That is always a complicated read, and a mis-
take can be devastating.

David Sklansky provides one way of figuring out whether
your adversary is betting for value:

When an opponent bets in a situation where he is sure
you are going to call, he is not bluffing. . . . If you cre-
ate the impression—by the way you have played your
hand, by the look of your board, by the action you
have put in the pot, or even by artificial means—that
you are going to call a bet, an opponent who bets is
betting for value.

It basically boils down to a single proposition: Only an
idiot would bluff when he believes that you intend to call.
So if you have been betting strongly all the way, representing
a made hand, your opponent’s monster raise on the river is
almost certainly a bet for value.

Recall Oscar Wilde’s first trial in 1895. The Marquess
of Queensberry had called Wilde a “posing sodomite,” and
Wilde opened the betting by filing a complaint for criminal
libel. In response, Queensberry filed a “plea of justification,”
including the claim that Wilde had been involved in sexual
activity with six or more “rent boys.” That was a huge raise
in the stakes, as the case was no longer simply about Wilde’s
outré lifestyle and extravagant persona. Instead, it prom-
ised to be a case about very specific acts, each of which hap-
pened to constitute a “crime against nature” and therefore

lawyers’ poker

an imprisonable felony. Was Queensberry bluffing, or was 167
he betting for value? Was he simply trying to scare Wilde
into dropping the case, or would he be able to establish his m
defense and send Wilde himself to jail?

Initially, it seems that Wilde (or his lawyer, or both) did
not believe that Queensberry had the goods. They refused
to fold the libel case, and Wilde even took the stand to deny
under oath that he had ever engaged in “gross indecency.”
But Queensberry came out swinging (so to speak, and to mix
a metaphor). Edward Carson, on Queensberry’s behalf, cross-
examined Wilde thoroughly, vigorously, and in excruciating
detail. He asked question after question, with names, dates,
places, circumstances, and even the descriptions of various
sexual acts (a bold move in Victorian England).

Yes, Carson might have been bluffing. It was not at all
certain that any of the rent boys were actually willing to tes-
tify against Wilde. Then again, he might have been holding
a made hand, with firm commitments from one or more of
the young men, perhaps motivated by anger at Wilde or the
hope of leniency from the police. Wilde’s lawyer, the highly
respected Sir Edward Clarke, former solicitor general of
England, had to decide what to do.

For a while, it appears that Clarke managed to persuade
himself that Queensberry was bluffing. Before agreeing to
take the case, after all, Clarke had made Wilde swear “on his
honor as an English gentleman” that he had never engaged
in “sodomitical” behavior. Slowly, however, it must have
dawned on Clarke that Wilde was actually an Irishman, a
small fact that the poet had earlier neglected to point out.

In any event, the Queensberry side never faltered or hesi-
tated. And neither did Wilde, dishing out indignant deni-
als, rapier-like witticisms, and memorable bon mots as rap-

Digging for Information

168 idly as Carson could throw accusations. It may have been

m Carson’s tenacity that most of all persuaded Clarke to throw

in his hand. Wilde, indeed, had indicated that he was will-
ing to fight to the finish, and yet the cross-examiner would
not relent. Only a fool would keep bluffing in those circum-
stances. And while it is true that Queensberry was a bully and
a buffoon, Edward Carson, the cross-examiner, most clearly
was not.

At a break in the proceedings, Clarke counseled his cli-
ent that there was no way to win the libel action. Indeed, the
only hope of avoiding a follow-up prosecution, for perjury if
not sodomy, was to abandon the case.

So Oscar Wilde threw in the towel (another unavoidable
boxing metaphor) and dismissed his suit. That bought him
sufficient time to arrange an escape to Paris while Queens-
berry attempted to persuade Her Majesty’s government to
prosecute Wilde (as Clarke had feared). For unfathomable
reasons, however, Wilde continued his own bluff. He inex-
plicably stayed in London and soon enough found himself
in the prisoner’s dock, charged with multiple counts of sod-
omy. The rent boys were indeed willing to testify, or were
coerced into it, and Wilde was convicted and sentenced to
two years at hard labor in Reading Gaol.

And that brings us back to Sacco and Vanzetti. Did their
defense lawyer simply blunder in his inflexible and there-
fore incomplete cross-examination of the prosecution bal-
listics expert, or did he accurately read the witness, recogniz-
ing that he was betting for value? Alas, the record indicates
the former. While it is conceivable that McAnarney might
have made a strategic decision not to cross-examine Proc-
tor about the gap in his testimony—whether the bullet was
fired from Sacco’s gun or merely “consistent”—that cannot

lawyers’ poker

explain why he failed to refer to it during his final argument. 169
Once Proctor was no longer on the stand, there could be no
fear that he would explain away the problem in his direct tes- m
timony. Thus, there was nothing to keep McAnarney from
hammering away at it, explaining to the jury that a merely
consistent bullet left lots of room for reasonable doubt. But
McAnarney did not so much as allude to the inconsistency,
which strongly suggests that he never noticed it—until it was
too late.

lesson 10: Total Recall

Card games such as bridge and blackjack require excep-
tional powers of immediate recall, because accurate card
counting is essential to correct play. That sort of memo-
rization is relatively unimportant in poker. In seven-card
stud (and five-card stud, to the extent that it is still played),
you need to remember the cards that have been folded so
that you can accurately count the remaining outs. Other
than that, however, card counting is not really necessary.
In Texas Hold’em, as well as in five-card draw, you can
always see all of the relevant cards, so there is nothing to
remember.

There is a different sort of memory, however, that is cru-
cial in poker—the recall of specific hands. Although poker
is a game of infinite complexity and finesse, there are many
situations that are repeated again and again. Studying these
situations can provide a tremendous advantage to a skilled
player. Impressive moves may appear to be instinctive, but in
fact they are often the result of careful study and long-term
planning. Doyle Brunson explains it this way:

Digging for Information

170 Whenever I use the word “feel,” you should under-

m stand it’s not some extra-sensory power that I have.

It’s just that I recall something that happened previ-
ously. Even though I might not consciously do it, I
can often recall if this same play or something close
to it came up in the past, and what the player did or
what somebody else did. So, many times I get a feeling
that he’s bluffing or that I can make a play and get the
pot. But actually my subconscious mind is reasoning
it all out.

In the film Rounders, for example, we see Mike McDermott
studying a videotape of Johnny Chan playing Erik Seidel in
the final hand at the 1988 World Series of Poker. Chan had
flopped the nut straight, an unbeatable hand, but he slow
played it all the way. Checking from the flop to the river,
Chan suckered Seidel into betting all of his chips and won
the world championship. Mike played and replayed the tape,
watching Chan’s demeanor and Seidel’s reactions. “Johnny
fuckin’ Chan,” says Mike admiringly. He knew his opponent
well enough to reel him in.

Later, in his dramatic head-to-head showdown with
Teddy KGB, Mike is getting dangerously low on chips when
he flops the nut straight. The board shows 6 o 7 m 10 n, with
Mike holding 8 m 9 m in the hole. He checks to KGB, who
reacts just as Mike hoped. “You on a draw, Mike?” he sneers,
and bets $2,000.

“All right, I’ll gamble,” says Mike, calling the bet. The turn
is a useless card (a “blank”), and Mike checks again, looking
increasingly worried. KGB splashes $4,400 into the pot, and
Mike reluctantly calls. “Or else I won’t respect myself in the
morning,” he says.

lawyers’ poker

“In the morning,” replies KGB, “respect is all you will 171
have left.”
m
The river is another blank. Mike checks as before, and
KGB keeps splashing. “You can’t believe what fell,” he taunts,
“your hopes down the fucking drain.” Moving all in, he says,
“That card couldn’t have helped you. Bet it all.”

“You’re right,” says Mike, cracking a faint smile. “It
didn’t help me. I flopped the nut straight.” He pushes his
chips in and shows his cards, and KGB goes wild with anger
and frustration.

Virtually channeling Johnny Chan, Mike busted KGB
and won the day. As Doyle Brunson might explain, Mike had
a feel for the hand, meaning that he recalled Johnny Chan’s
play in like circumstances and coolly emulated the master. It
might seem like a pat ending, but it is not farfetched at all. It
made sense for Mike to make a point of remembering Chan’s
approach, assuming that he would have his own opportu-
nity to use it later. True, the odds against flopping a straight
are 254 to 1, and the odds of flopping the nut straight are
somewhat worse. But Mike could realistically hope to draw
such a hand now and then—especially playing all-night ses-
sions at the rate of 35 hands per hour. So he knew that his
plans—and recollection—could some day pay off.

Litigation is nowhere nearly as repetitive as poker, and
it moves much more slowly. Still, a good memory is obvi-
ously important to a trial lawyer, as is a feel for particular
situations.

On the afternoon of March 25, 1911, there was a terrible
fire in the Asch Building near Washington Square in Man-
hattan. The Triangle Shirtwaist Company occupied the top
three floors of the building, with hundreds of immigrant
women, many of them teenagers, employed in the ninth-

Digging for Information

172 floor cutting room. As smoke and flames filled the factory,

m they rushed for the exits, only to find the stairways inade-

quate and some of the doors locked. Trapped in a suffocat-
ing inferno, 146 people would die, nearly all of them young
women—some from burns, some from asphyxiation, and
some from injuries suffered when they frantically jumped
from the windows. Meanwhile, the executives on the tenth
floor calmly walked up to the building’s rooftop, where they
were later rescued without incident.

The citizens of New York were outraged that so many
young lives had been lost so needlessly. There was an insis-
tent demand for prosecution, and within two weeks the
owners of the factory were indicted for manslaughter. Spe-
cifically, it was charged that they had locked the exit doors
on the ninth floor in order to prevent their employees from
sneaking out and stealing goods. That was a violation of the
labor code, if proven, and the resulting deaths would there-
fore amount to manslaughter.

Numerous prosecution witnesses testified that the door
on the Washington Place side of the building had been
locked or inoperable, leading to the deaths of women who
were caught, or even crushed, as they vainly tried to open
it. Specifically, the prosecutors contended that a girl named
Margaret Schwartz had died when she was trapped against
the Washington Place door.

Kate Alterman, one of Schwartz’s friends and coworkers,
was an especially effective witness. Speaking with a thick Yid-
dish accent, Kate described the horrors of that afternoon:

I noticed someone, a whole crowd around the door
and I saw Bernstein, the manager’s brother trying to
open the door, and there was Margaret near him. Ber-

lawyers’ poker

nstein tried the door, he couldn’t open it and then 173
Margaret began to open the door. I take her on one
side I pushed her on the side and I said, “Wait, I will m
open that door.” I tried, pulled the handle in and out,
all ways—and I couldn’t open it. She pushed me on
the other side, got hold of the handle and then she
tried. And then I saw her bending down on her knees,
and her hair was loose, and the trail of her dress was
a little far from her, and then a big smoke came and
I couldn’t see. I just know it was Margaret, and I said,
“Margaret,” and she didn’t reply. I left Margaret, I
turned my head on the side, and I noticed the trail of
her dress and the ends of her hair begin to burn.

Between the machines and between the examining
tables, I noticed afterwards on the other side, near the
Washington side windows, Bernstein, the manager’s
brother, throwing around like a wildcat at the win-
dow, and he was chasing his head out of the window,
and pull himself back. He wanted to jump, I suppose,
but he was afraid. And then I saw the flames cover
him. I noticed on the Greene street side someone else
fell down on the floor and the flames cover him.

The whole door was a red curtain of fire. A young
lady came and she began to pull me in the back of my
dress and she wouldn’t let me in. I kicked her with my
foot and I don’t know what became of her. I ran out
through the Greene street side door, right through
the flames on to the roof.

The courtroom was transfixed, but defense lawyer Max
Steuer thought he’d heard something odd in Alterman’s
testimony. Abandoning all of the rules of cross-examina-

Digging for Information

174 tion, he asked her to repeat the story. She told it again, and

m this time Steuer knew there was something wrong. Even

without the aid of a transcript, he realized there had been a
slight change in Alterman’s wording, so he asked her about
the flames.

She quickly corrected herself. It was “like a red curtain.”
“And how was Bernstein acting?” came the next question.
“Like a wildcat,” Alterman told him.
“You left that out the second time?” asked Steuer. “You
did leave that out, didn’t you, just now?” Then he asked her
to tell the story again.
Alterman obliged, this time including the reference to
Bernstein acting like a “wildcat” and the “red curtain” of
flames.
Now Steuer was certain that Alterman had been coached
and had memorized her testimony. But rather than confront
her, he slow played his hand:

q : You never spoke to anybody about what you were
going to tell us when you came here, did you?

a: No, sir.
q : And you didn’t study the words in which you

would tell it?
a: No, sir.

The naive Kate Alterman had been led into an obvious
lie, which was far more damaging to her credibility than the
truth, that she had planned her statement with the prosecu-
tors. But Max Steuer was not finished yet. He asked her to
tell the story yet again. And so she did, with the same result.

It took a powerful memory for Max Steuer to replay Kate
Alterman’s testimony word for word, even as he devised his
cross-examination. But the strategy apparently worked. After

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only two hours of deliberation, the jury acquitted the defen- 175

dants of all charges. m

lesson 11: The Unexpected

Sometimes you will find memorable information when you
least expect it.

Following the publication of The American Black Cham-
ber in 1931, Herbert Yardley found himself ostracized in
the American intelligence community. Within a few years,
however, he managed to find suitable employment in Asia,
hired by the Chinese government to organize its intelligence
service. Marked as an enemy by the Japanese, Yardley was
forced to work under cover to avoid recognition and pos-
sible assassination.

Along with his translator, Ling Fan, Yardley was sent to
Chungking in China’s interior where, safe from the invading
Japanese, he was tasked with developing a cryptographic pro-
gram for the interception of Japanese military dispatches. As
the administrative center of the Chinese government, Chung-
king attracted a constellation of “foreign advisors, corre-
spondents, businessmen, diplomats, as well as spies, crooks,
whores and expatriates.” Conditions were austere, with little
in the way of luxury or entertainment, but there was a per-
manent poker game at the Chungking Hostel that attracted
participants of every nationality and description. Yardley
made it his second home, and he endeavored to teach Ling
Fan the secrets of the game.

One night, the game was joined by a young German, sup-
posedly a refugee from Nazi tyranny. Yardley described him
as “about thirty, a big blond, soft spoken, and he carried him-

Digging for Information

176 self like a soldier.” He was traveling on a forged Honduran

m passport, which hardly distinguished him from most of the

Europeans in Chungking.
The game progressed uneventfully until the German

and Ling Fan went head to head in a big hand of seven-
card stud. After five cards had been dealt—two down, three
up—the German bet US$500, which was a small fortune in
wartime China. Ling called nervously; he was on a draw and
had not yet made his hand. There was even more betting on
the sixth card.

“What’s the Hong Kong rate of exchange?” whispered the
German.

“About four to one,” answered a pilot who was sitting out
the hand.

“I bet US$1,000,” said the German, slapping down 2,000
Hong Kong dollars and then pulling out his bulging wallet.
He peeled off five U.S. hundred-dollar bills and threw them
into the pot.

It was obvious to Yardley that Ling still had not made his
hand, but the translator warily threw his last $1,000 into the
pot. Then came the seventh card, face down.

Without even looking at his last hole card, the German
reached for his wallet and began counting out a sheaf of
hundred-dollar U.S. bills.

“I bet $2,000 gold,” he said with no inflection.
Ling turned to Yardley. “Advisor,” he said, “you got any
money?”
Realizing that Ling must have made his hand on the
last card, Yardley unbuttoned his trousers and removed his
money belt, slipping 20 hundred-dollar bills to his friend.
Sure enough, Ling had the German beat. He gathered the
money and smiled.

lawyers’ poker

Yardley, however, was not happy. He took Ling by the 177
arm and hurried him away from the table, indicating that
they should remain silent about what had just happened. m
Back at their quarters, Yardley examined the German’s U.S.
currency, determining that the serial numbers began with
E048936642Y and ended with E048936965Y.

“The serial numbers indicate the German had over
$30,000 gold in his purse,” exclaimed Yardley, “that is, if the
numbers run consecutively.”

“They do,” said the observant Ling. “The first five bills
he took from the left side of his wallet, the next 20 he took
from the right.”

“That’s too much money for a refugee to be carrying
around,” said Yardley. “He’s a squarehead Nazi agent.”

Suspecting that the spy would also have a hidden radio
transmitter, Yardley moved some of his equipment near the
German’s room in the hostel. Sure enough, he was able to
begin intercepting thinly coded messages. Yardley hoped to
maintain the intercepts until he could locate the German’s
confederates, but his Chinese superiors were unwilling to let
the spy stay at his work. They arrested him almost immedi-
ately but allowed Yardley to conduct the interrogation. At
first, the German was intransigent, but Yardley explained
that he was facing execution and promised to protect him
if he confessed. That shook loose part of the story, and
the application of sodium amytal (illegal even then in the
United States, but freely usable in wartime China) obtained
the rest.1

1 According to Yardley, sodium amytal was developed at Northwestern
University, where I have taught for over thirty years. Just thought I’d
point that out.

Digging for Information

178 The German was an advance agent in a plot to kidnap

m and perhaps even kill Generalissimo Chiang Kai-shek. Yard-

ley’s keen eye and poker savvy had unmasked an enemy oper-
ation that might have altered the course of World War II (at
least in his telling).

There is no truly comparable story about litigation. A
lawyer on television might discover a sinister spy ring in
the course of a trial, or stumble across the real murderer
during cross-examination, but that sort of thing does not
happen in real life. Perhaps the closest parallel occurred in
the Senate Watergate hearings of 1973, when White House
appointments secretary Alexander Butterfield stunned the
investigating committee by revealing the existence of Presi-
dent Richard Nixon’s secret audiotapes. The resulting legal
struggle over access to the tapes and the subsequent discov-
ery of a mysterious 18-minute gap led to the downfall of the
Nixon presidency.

The lesson is clear. Stay alert.

lesson 12: Local Rules

As painfully obvious as it may seem, it is essential for law-
yers and card players to make sure that they know the local
rules, which can sometimes be surprisingly tricky. Even
though law practice has become increasingly national in
scope, we remain a nation of 52 local jurisdictions (50 states
plus the District of Columbia and Puerto Rico), as well as
the federal courts. Some rules, including important ones,
differ from state to state, county to county, and even from
courtroom to courtroom. It can be embarrassing, or worse,

lawyers’ poker

to run afoul of a unique state statute or idiosyncratic court 179
rule, not to mention various unwritten practices and con-
ventions. At best, you will be marked as an unprepared out- m
sider. At worst, you may find yourself at a serious disadvan-
tage, or even looking at the wrong end of a sanctions order
or default judgment.

To take just one example, consider the various rules for
conferring with your client during his deposition. Until not
long ago, it was generally considered appropriate for a law-
yer to confer with her client at just about any point during
a deposition, although some courts prohibited conferences
while a question was pending. Lawyers repeatedly abused
this leeway, interrupting the questions and calling frequent
recesses, ostensibly advising their clients, but often simply
disrupting the proceeding (or worse, feeding answers to
their clients).

Virtually no jurisdiction today tolerates unlimited con-
ferring between lawyer and client, though many continue to
adhere to the “no question pending” rule. Others however,
have adopted far more stringent measures, prohibiting all
mid-deposition conferences, save those necessary to deter-
mine whether to assert a privilege. To make matters more
confusing, the reforms have been enacted through a pas-
tiche of court rules, judicial decisions, and standing orders,
meaning that there is little uniformity and sometimes no
good way of finding out the local practice other than by ask-
ing around.

Similar inconsistencies abound from jurisdiction to
jurisdiction on issues both mundane (tendering expert wit-
nesses to the court) and crucial (admissibility of “prior bad
acts” evidence). It is essential, therefore, to have an ironclad

Digging for Information

180 grasp of local procedures before you ever file an appearance

m or walk into a courtroom. Assume nothing.

As the following poker story illustrates, it is all too easy
to get tripped up.

A tenderfoot walked into a saloon in Tombstone and sat
down for a game of five-card draw. After an hour or so of
indifferent success, he found himself holding four jacks. He
bet the limit and was called by a grizzled old miner, while
everyone else folded. Neither man took a card on the draw,
and they continued raising and reraising until they hit the
limit again. The miner showed his hand—two deuces, a four,
a five, and a six—and reached for the pot.

“Hold on a minute, old timer,” the tenderfoot yelped.
“I’ve got four jacks.”

“So you do, sonny,” said the miner, “but I’ve got an Old
Cat.” He pointed to a sign on the wall, which read: An Old
Cat Beats Anything.

There was no arguing with the sign, so the tenderfoot
shoved over the chips and vowed to get even. Many hours
later, he was delighted to see an old cat in his own hand—a
pair of deuces, with a four, five, and six. Doing his best to
avoid even a glimmer of a smile, he bet the limit, only to be
called by the same elderly miner. Again, both men stood pat,
and again they raised the limit.

The miner showed a pair of aces and reached for the pot.
“Not so fast,” the tenderfoot cried. “This time I have an
old cat.”
“I’m sorry to hear that,” said the miner, pointing to a sign
on another wall: An Old Cat Is Only Good Once Each Night.
Court rules are seldom that arcane, but they can be almost
as unpredictable and definitely just as expensive to ignore.

lawyers’ poker

lesson 13: Showing Your Hand 181

Anyone who has ever litigated “by the book” will be famil- m
iar with the standard advice for defending depositions: Do
everything you can to limit the information given to the
other side. After all, a deposition is a discovery device, used
in preparation for trial. Since just about anything might
be used by the opposition to bolster its case, the presump-
tive approach is to withhold as much as possible, within the
confines of the rules. Or, as one leading handbook puts it,
“There is no sense sharing information with the other side
when there is no requirement of doing so.”

There is a compelling logic to this approach. Informa-
tion, which may eventually become evidence, is the currency
of a trial. Whoever has the most information is at a substan-
tial advantage. Consequently, a lawyer should want to find
out everything the opposition knows, while keeping all of
her knowledge (or as much as possible) to herself. In other
words, information is viewed almost as a zero-sum com-
modity. And since the objective of a successful deposition is
to obtain information, the objective of a successful defense
must be to deny it.

To be sure, no ethical lawyer would simply disobey or
flout discovery rules. But those rules are subject to consid-
erable interpretation and are often ambiguous and flexible.
Even more to the point, deposition responses depend on the
particular questions asked, with no general duty to volunteer
or expand. Hence, the lawyer’s usual admonition is that the
witness provide only the shortest possible answers, without
explanation or elaboration. If opposing counsel wants more
information, it’s her job to ask more questions.

Digging for Information

182 Most attorneys will tell you that this strategy is necessary

m to surprise the other side at trial. Why allow the opposition

to prepare its cross-examinations, or set up impeachment, or
search out other witnesses, or otherwise patch up the holes
in its case?

Today, however, actual trials are few and far between,
especially in civil litigation. While it is debatable whether
this is good or bad from the perspective of social policy, it
is an inescapable reality for lawyers. Since fewer than 3% of
civil cases are tried to verdict, settlement is far and away the
most common result in litigation, with as many as 30 cases
settled for every trial. No competent lawyer should neglect
trial preparation—if only because better preparation leads to
stronger negotiating positions—but it is surely the case that
depositions are most likely to be used as negotiating tools,
rather than as trial bombshells.

Negotiation theory tells us that the strength of your
position is a major determinant (perhaps the major deter-
minant) of the outcome. The shorthand term for this con-
cept is BATNA—best alternative to a negotiated agreement.
The better your perceived BATNA, the better your negoti-
ated result. Of course, opposing parties cannot be intimi-
dated by your BATNA unless they know about it. Thus, a
good deal of any negotiation must be devoted to a detailed
description of your powerful case (without details, it would
just be unpersuasive bragging). And what is it that makes
your case so compelling? One factor would certainly have
to be the strength of your witnesses and the quality of their
expected testimony, and therefore the likelihood that you
will prevail at trial.

In other words, you should usually want the other side to
know about your witnesses well in advance of the trial—the

lawyers’ poker

better to influence their settlement posture. And what bet- 183
ter way to educate the opposition than by showcasing your
witnesses at their own depositions? Don’t prepare your wit- m
nesses to give short, unrevealing answers. Encourage them to
tell what they know, explaining why you represent the win-
ning side.

Yes, this idea is hard to swallow. Lawyers have been con-
ditioned to stash information, not give it away. And yes, the
shortest-answers approach is no doubt essential with wit-
nesses who are anxious, undependable, or ill prepared. But
even those witnesses would eventually have to be prepared
for direct and cross-examination if the case goes to trial. Rec-
ognizing that the deposition more or less functions as a sub-
stitute trial, it makes good sense to prepare your witnesses
sooner rather than later. True, that might take slightly more
time than simply drilling the witnesses to give short, correct
answers, but there could be a substantial payoff in the settle-
ment value of the case.

There may also be a serious cost to concealing even dan-
gerous facts. If a subject is never broached in the deposi-
tion, the witness will never have a chance to rebut, explain,
or accommodate the potentially damaging information. Of
course, the rebuttal or explanation could always come at
trial—in the exceptionally unlikely event that there is a trial.
Otherwise, opposing counsel will never have to reckon with
the fact that the seemingly bad facts might be neutralized
or discredited by your witness’s well-organized persuasive
response. And the settlement will not reflect the witness’s
well-prepared clarity and probity.

Lawyers are creatures of habit. As a profession, we tend
to respond positively to the familiar, while discounting any-
thing novel or innovative—at least for a while. In deposition

Digging for Information

184 practice, lawyers have come to expect a certain level of recalci-

m trance from a well-prepared deponent. Indeed, a standoffish

disposition is probably taken as the hallmark of a tough wit-
ness—providing as little ammunition as possible for future
cross-examination.

We all know lawyers who habitually bluster about the
quality of their cases, whether or not they have the actual
goods to back up the bragging. In negotiation, it is impor-
tant to separate bluff from strength. Thus, it is not hard to
imagine that counsel’s willingness to let a deponent speak
might quickly be recognized as a sign of confidence. Thus,
revealing information could eventually be recognized for the
assertive, perhaps even aggressive, tactic that it is.

The effectiveness of intentional disclosure can be illus-
trated with a legendary, but true, story from the annals of
professional poker. Jack “Treetop” Straus is one of the great
professional poker players, winner of the 1982 World Series
of Poker. His most famous play came in a round of Texas
Hold’em. In this particular hand, Straus was initially dealt
the worst possible hole cards—a deuce and seven of different
suits (the deuce and seven are the two lowest cards that can-
not be combined into a five-card straight). Ordinarily, a good
player would fold such a hand, but Straus kept playing. The
three-card flop consisted of a seven and two threes, giving
Straus two pair (sevens and threes), but also giving everyone
else a pair of threes to work with. Anyone with a big pair
(higher than sevens) in the hole would beat Straus’s hand.
That appeared to be the case, when another player raised
aggressively, indicating a very good hand. Straus nonethe-
less called, even though he was virtually certain that he was
up against better cards (in fact, the other player was holding

lawyers’ poker

jacks and threes). The next up card (the turn) was a deuce. 185
That gave Straus three pair, though it did not improve his
hand, since only five cards can be used. m

At that point, Straus bet $18,000, more than triple the
amount of any previous bet in the game. The other player,
who had been betting aggressively, suddenly paused. How
could a deuce have helped Straus so much? While the other
player was thinking it over, Straus leaned over the table, smil-
ing. “I’ll tell you what,” he said, “You give me one of those
little old $25 chips of yours, and you can see either one of my
hole cards, whichever one you choose.”

The other player hesitated, then tossed Straus a chip, as
he pointed to one of the hole cards. Straus turned it over,
revealing a deuce. The conclusion seemed obvious. Straus
must have a pair of deuces in the hole (why else would he
offer to show either card?), giving him a full house, deuces
over threes. His opponent folded, and Straus won the pot
with an inferior hand. Note that he would have achieved the
same outcome if his opponent had selected the other card, a
seven, since that would have indicated that Straus was hold-
ing a full house—sevens over threes.

The point of this story, in case it isn’t obvious, is that Jack
Straus won the hand (and became a poker legend) by volun-
tarily revealing information, not by concealing it. Showing
his hole card was an aggressive show of strength that forced
the other player out of the game.

But there was even more to the strategy than that. Good
players seldom show their hole cards, so why didn’t the other
player recognize Straus’s move as a bluff? That was due to
another brilliant bit of reverse psychology. The opposing
player reasoned that Straus wanted him to think he was bluff-

Digging for Information

186 ing, in order to get him to dump another $18,000 into the

m pot. “If Straus wants me to think he’s bluffing,” the loser’s

thinking went, “then he must really have the cards.” Folding,
therefore, was the only rational decision.

What good are your strengths if you keep them hidden?
Or, to put it another way, good things can happen when you
show your hand.

lawyers’ poker

H E A R T S Ethics and Character